Constitutional Law Updates for March 2017

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NJAC TUSSLE – UPDATES

Ever since the Supreme Court ruled the Judicial Appointments Commission proposed by the government to be unfit, there have been strained relations between the executive and the judiciary. The government has delayed appointments, refused transfers and refused to relent.

  • COLLEGIUM SYSTEM : The ongoing system of appointing judges of the Supreme Court — in which the judiciary alone decides whom to add to its ranks — with the government having the ability to influence the decision by sitting pat on the collegium’s recommendations without taking any action, is neither transparent nor accountable.

  • HOW IT SHOULD BE > When a vacancy opens up for a judge in a high court or in the Supreme Court, eligible members of the judicial fraternity, including lawyers, should be able to formally register their interest.

MARCH 18TH : Final Memorandum of Procedure handed over to govt.

  • The Supreme Court Collegium has handed over the finalised Memorandum of Procedure (MoP) for appointment of judges to the government.

  • The body of five senior-most judges of the apex court, headed by Chief Justice of India J.S. Khehar has made it clear that if the government has objections on the ground of national security and public interest, it will convey the same to the collegium. The collegium will then take a final call.

  • The national security clause and the secretariat clause are part of the draft MoP, which has been shuttling between the government and the collegium since March 22, 2016.

  • While accepting the government's demand to set up secretariats in the apex court and the 24 high courts to assist collegiums in SC and HCs in selecting judges, the collegium has refused to accept the demand for committees of retired or sitting judges to assist the collegiums in finding suitable candidates

Socialism missing from religion: SC[1]

RELIGION AND PROBLEM : The Supreme Court on Tuesday expressed concern at the threat of “musclemen” taking over charge of religious assets and properties.

  • “Everywhere with temple and church properties there is a problem ... there is a problem of musclemen taking over temple and church property,” Justice Arun Mishra remarked orally. The judge made the oral observation while heading a Bench, also comprising Justice Amitava Roy. He made the observation while hearing a dispute between two factions of a church in Kerala.

  • Justice Mishra said the aspect of socialism was missing from religion. “The respect for the poor in religion is lost with the properties going into the hands of musclemen,” Justice Mishra remarked orally.

‘Money may be problem’ “It is a religion based on the concept of giving respect to the poor,” the judge said. He said money flowing in from “everywhere” and invested in religion might be “the problem or the only problem.”

MARCH 10TH 2017 : Supreme Court issues bailable warrants against Justice Karnan

A seven-judge Bench, comprising the seniormost judges of the Supreme Court, issued a bailable warrant against sitting Calcutta HC judge C.S. Karnan to secure his presence in the Supreme Court on March 31 in a suo motu contempt case against him for denigrating the judicial institution.

Judge C.S. Karnan alleged that he was being targeted by the Supreme Court because he belongs to a Scheduled Caste community.

  • Justice Karnan also directed the Central Bureau of Investigation to initiate a probe against the seven Supreme Court judges, including Chief Justice Khehar.

  • In a letter to the Prime Minister, Justice Karnan had allegedly accused several sitting and retired High Court and Supreme Court judges of corruption.

  • Justice Karnan argued, “no contempt either civil or criminal can be initiated against a sitting High Court Judge under Sections 2 (c), 12 and 14 of the Contempt of Courts Act or under Article 20 of the Constitution of India.

MARCH 13TH 2017 : SC cracks down on judicial delays

NEWS ; A Bench of Justices A.K. Goel and U.U. Lalit, in their 22-page judgment, said there was no room for non-performers among the subordinate judiciary. “Public interest is above individual interest,” Justice Goel wrote.

HELD : “Judicial service as well as legal service are not like any other services. They are missions for serving society... Posting of suitable officers in key leadership positions of Session Judges and Chief Judicial Magistrates may perhaps go a long way in dealing with the situation. Non-performers/deadwood must be weeded out as per rules,” the Supreme Court said.

ACCOUNTABILITY ON THE COURTS :

  • The Supreme Court asked the High Courts to ensure that subordinate courts dispose of cases pending for five years by the end of 2017.

  • Noting that High Courts should monitor action plans for lower courts and keep a constant watch, the Supreme Court said the timelines prescribed in the judgment would be used to assess judicial performance in the annual confidential reports of judicial officers.

HUMAN RIGHTS VIOLATION : Noting that 50% of the population in jails consisted of undertrial prisoners, and long periods of incarceration without bail or trial was human rights violation, the judgment said those undertrials who had already completed their entire period of their sentence, had they been found guilty, should be released on personal bond.

MARCH 21ST : Poll panel backs life ban on convicts

LIFE-LONG BAR FOR CONTESTING IN ELECTIONS : Noting that it has been “championing the cause of decriminalisation of politics,” the Election Commission has endorsed a public interest litigation petition in the Supreme Court seeking life-long bar on convicts from contesting polls and entering the legislature.

POSITION NOW : As of now, a person, on conviction, is debarred from contesting any elections for the period of his or her prison sentence and six years thereafter. The Election Commission said it had already submitted detailed proposal for electoral reforms, which include de-criminalisation of politics, making bribery a cognisable offence and prohibition on advertisements 48 hours before elections and a strict ban on paid news as recommended by the Law Commission in its 244th and 255th reports.

UPDATES ON LOKPAL

MARCH 28TH : THE HINDU : Supreme Court reserves verdict on pleas seeking appointment of Lokpal

The apex court on November 23, 2016, pulled up the Centre over the delay in appointment of Lokpal saying it should not allow the law to become a “dead letter.”

The Supreme Court on Tuesday reserved its verdict on a batch of pleas seeking the appointment of Lokpal in the country.

A Bench headed by Justice Ranjan Gogoi said, “We have heard the arguments of all the parties. Judgment (is) reserved.”

Lokpal cannot be appointed in the current scenario as amendments regarding the definition of the Leader of Opposition (LoP) in the Lokpal Act was pending in the Parliament.

As per the Lokpal and Lokayuktas Act of 2013, the Leader of Opposition in the Lok Sabha will be part of the Lokpal selection panel. The law provides the selection of chairperson and members of Lokpal shall be through a selection panel consisting of the Prime Minister, Lok Sabha Speaker, LoP in Lok Sabha, Chief Justice of India or a sitting Supreme Court judge nominated by the CJI, an eminent jurist to be nominated by President of India on the basis of recommendations of first four members of selection committee.

At present, there is no Leader of Opposition in the Lok Sabha.

PETITITON : Senior advocate Shanti Bhushan, for petitioner NGO Common Cause, alleged that the Lokpal Act which came into force in 2014 was deliberately not implemented for ulterior motives.

  • The inaction of the government in making the appointment of Lokpal is arbitrary and unreasonable and hence, violative of Article 14 of the Constitution”

It had also said that one of the ways to ensure total transparency in the selection process is that the panel of persons to be prepared by the search committee for consideration by the selection committee must be placed in public domain.

GOVERNMENT : “Unless the proposed amendment making Leader of the Largest Opposition party as Leader of Opposition is passed by Parliament, the Lokpal can’t be appointed,” Mr. Rohatgi said.”

HELD : The SC criticised the government for “dragging its feet” on the appointment of Lokpal to usher in probity in public life.

The apex court had said that the Lokpal law that came into being after a nationwide stir led by Anna Hazare cannot be made redundant just because the legislation was not amended to bring in the leader of the largest Opposition party in the selection panel.

SOLUTION :

  • The apex court had said that the LoP is “dispensable” and things can proceed without the LoP who can be replaced by the leader of the largest Opposition party in the committee.

  • Prashant Bhushan pointed out how the LoP has been substituted with the single largest opposition party leader in other laws concerned with the appointments of the Chief Vigilance Commissioner, the CBI chief and the Chief Information Commissioner.

UPDATES ON PUBLIC INTEREST LITIGATION

MARCH 11TH : On curbing frivolous litigation, SC does well to crack down, ask other courts to follow

Considering how 25-30 million cases are pending at the Supreme Court, high courts and subordinate courts, the apex court coming down hard on frivolous litigation that clogs the judicial process is welcome.

MISUSE OF PIL :

  • The Maintainability of Public Interest Litigation Rules, outlined by the Supreme Court in 2010, spoke of making it compulsory for petitioners to first disclose their credentials and motives to the court’s registry, which was to then decide if the PIL could be entertained.

  • It also spoke of making petitioners compulsorily deposit an “appropriate” amount with the court to be paid as “compensation” in case a PIL is found to be “vexatious, frivolous or mala fide”.

  • In 2005, the Law Commission proposed a law against vexatious litigation—Madhya Pradesh, Maharashtra and Tamil Nadu, have enacted such laws.

  • While that seems a good idea, it is open to abuse and governments can use this to check whistleblower litigants. Which is why, while the media and civil society have to keep monitoring such cases, the Supreme Court would do well to also keep an eye on such abuse, possibly with the help of an amicus curae.

  • Despite the state’s laws and individual courts imposing fines, the flood of frivolous litigation has, by and large, remained unchecked. So, courts across the country would do well to pay heed to the SC’s words in the March 1 judgment: “It is the duty of every court to firmly deal with such situations. The imposition of exemplary costs is a necessary instrument …”

ALTERNATIVE DISPUTE RESOLUTION

MARCH 21 : Choked courts: Standalone law on mediation could help cut pendency

With 2.81 crore cases choking the courts—which need 4,500 more judges than there are at the moment—it is surprising that settlement is a rarely chosen method for dispute resolution in India.

Therefore, Justice Dipak Misra of the Supreme Court appealing for a culture of out-of-court settlements assumes special significance.

More so, when a little over 1 crore matters, both pending and pre-litigative, were disposed by the National Lok Adalat in 2016 and the Supreme Court’s Mediation and Conciliation Project Committee has been functional for some time now.

  • Developed jurisdictions like the US have long favoured settlement as a method of dispute resolution—though it is not as high as claimed (95% of all matters, though a Cornell study shows most torts that reach federal courts are settled outside).

  • The Daksh State of the Indian Judiciary report pegs the cost of pendency in courts at 1.5% of the GDP.

  • If civil and petty criminal cases were to first go through a settlement mechanism, imagine what the nation, and litigants, could end up saving. The standalone law on mediation that the law ministry had proposed last year is, therefore, welcome.

[1] March 07th 2017.

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